Smith v. Smith

NOURSE, P. J.

The defendant appeals from portions of a minute order entered by the trial court in a divorce proceeding requiring him to remove himself from the family home and to authorize the sale of a brokerage account, the proceeds of which would be deposited with a trustee, to be used for the support of the plaintiff and the minor children of the parties.

The plaintiff filed a complaint for divorce, in which she alleged that while in an intoxicated condition the defendant had used firearms in and about their home premises, had threatened her life and the lives of her children and had destroyed property in and about the residence. The defendant filed a demurrer to the complaint. On plaintiff’s affidavit the court issued an order to the defendant to show cause why he should not be required to pay plaintiff’s attorney’s fees, to pay a sum of money for support of his wife and children and to leave the family residence pending the hearing of the action. The defendant was served with the order and filed an affidavit in opposition relating to the financial condition of the parties, but not denying the charges of misconduct in the family home. The order to show cause was heard after a hearing in chambers as- a conciliation matter where the court was unable to effect a reconciliation. A minute order was thereupon entered requiring defendant to move from the family home; the order further provided: “ . . . defendant to authorize the broker to sell out the brokerage account, deliver the proceeds from said sale to plaintiff’s and defendant’s attorneys and they are to choose a trustee with

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whom to deposit the money; said money to be used to support the plaintiff and the children. ’ ’ Defendant filed a notice of appeal from these portions of the order. He was subsequently adjudged in contempt of court for disobeying the order but was discharged after a hearing on his petition for habeas corpus, the operation of the mandatory order having been stayed by the appeal.

The first question presented on this appeal is whether the trial court had jurisdiction to order appellant to remove himself from the family home pending the trial of the divorce action. The complaint filed in the proceeding alleged that appellant had committed acts of violence about the residence, had threatened the life of respondent and the children and had destroyed property; this allegation of the complaint constituted a portion of the record to be considered by the trial court at the hearing of the order to show cause and was admitted by appellant’s demurrer and failure to deny. The hearing was held after lawful notice had been given to appellant, and seems to have been conducted in part in the nature of a conciliation proceeding under section 1767, Code of Civil Procedure. Since no reporter was present in chambers the transcript of testimony fails to disclose whether or not any evidence was then introduced to substantiate the allegation in the complaint concerning appellant’s violence. However, the subsequent order to show cause in the contempt proceeding, which has been included in the record on appeal, indicates that the minute order appealed from was made on statements of the appellant and on facts stated by counsel for both parties in appellant’s presence, and not denied by him, to the effect that upon one occasion he discharged firearms in the home, destroyed property and threatened the lives of his family to the extent that it was necessary to summon the police to disarm him. In addition to this the admitted allegations of the complaint were evidence of those facts upon the hearing. Hence it must be taken to have been pleaded and proved that appellant, on one occasion at least, was violent about the home, threatened the lives of his family, and irreparable injury might result from his continued presence there.